The following are excerpts from a dissenting opinion by then Supreme Court Judge Fred Banks in a case that has been referred to several times during the course of the Melton residency issue.
As you may remember, Judge Banks, noted local attorney, introduced Harvey Johnson during his announcement to seek reelection.
Hinds County Election Com’n v. Brinston 671 So.2d 667, *668 -669 (Miss.,1996)
Excerpts from Banks dissent in Brinston:
To begin, I must confess that if Gadd were before the court today, I would not have voted for the majority opinion. In my view, the electoral process is not well served by the erection of barriers to a candidacy that have no relevance to the issue at hand which is the expression of the will of the majority of the electoral unit with respect to its representatives. I would not have regarded the filing of the homestead exemption application as dispositive of the issue of residency for electoral purposes as this Court did in Gadd. To the extent that the majority opinion retreats from that position, I agree with its direction. It does not go far enough, however.
*670 Moreover, the majority, by applying its lessened standard to the evidence before it, has assumed the role of fact finder. The original decision of the Election Commission applied Gadd as written rather than as interpreted by the Court today. The trial court decision distinguished Gadd on the facts but it has never had the opportunity to determine whether the presumption decreed today had been overcome.
If the issue is to be decided here, I believe that the evidence before the court is sufficient to rebut the presumptive effect of the filing of an application for homestead exemption which the majority bestows upon that occurrence. First, the evidence suggests that Brinston applied for a Madison County homestead exemption in 1994, not 1995, the year here in question. Later in 1994, he was separated from his wife and he moved back to Hinds County. He never removed his name from the voting rolls in Hinds County. He was, at all times relevant, employed in Hinds County. The trial court found, based upon unrefuted evidence, that Brinston had marital problems and that from and after November 1994 he continuously resided at 2421 Newport St. in the City of Jackson, Hinds County. As distinguished from Gadd, the office sought by Brinston required residency for a period of only thirty days, not the two-year requirement applicable to legislative candidates.
The trial court also noted the difference between the homestead exemption application in Gadd and that used in the present case. The Gadd application suggested that the home in question was Gadd’s sole residence. Brinston’s application made no such assurance, referring instead to his “primary home.”
Finally, in order to give the filing of a homestead exemption application presumptive effect, there must be a finding that such an application was filed. Our statutory scheme respecting applications for homestead exemption require no annual application, only if there has been no change in “the property description, ownership, use or occupancy since January 1 of the preceding year.” Miss.Code Ann. ?? 27-33-31 (1995). In the event of such a change, a new application is required. The trial court found no new application for homestead exemption in evidence and that, while taxes had been paid in March 1995, these taxes were for the year 1994. It is not clear then, whether Brinston ever received in tax benefit for the year 1995. Whether he did or not, it is perfectly clear that he made no affirmative declarations for the year 1995 out of which a presumption of residency could arise.
For the foregoing reasons, I would affirm the judgment of the circuit court.
JAMES L. ROBERTS, Jr., J., joins this opinion.